On behalf of the respondent-appellant,the cause was submitted on the briefs
of Ellen Henak and Hannah B.
Schieber assistant state public
defenders of Milwaukee.There
was oral argument by Hannah B. Schieber.

Respondent

ATTORNEYS:

On behalf of the petitioner-respondent, the cause was
submitted on the brief of J.B. Van Hollen, attorney general, and Warren D. Weinsteinassistant attorney general.There was oral argument by Warren D.
Weinstein.

2012 WI APP 134

COURT OF APPEALS

DECISION

DATED AND FILED

November 27, 2012

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP2565

Cir. Ct. No.1995CF954690

STATE OF WISCONSIN

IN COURT OF
APPEALS

In re the commitment of Shawn David Schulpius:

State of Wisconsin,

Petitioner-Respondent,

v.

Shawn David Schulpius,

Respondent-Appellant.

APPEAL
from an order of the circuit court for Milwaukee County:kevin
e. martens, Judge.Affirmed.

Before Curley, P.J., Kessler and Brennan, JJ.

¶1BRENNAN, J. Shawn
David Schulpius, in July 1996, was civilly committed by the State as a sexually
violent person under Wis. Stat.
ch. 980 (2009-10).[1]In January 2010, his petition for discharge
was denied after a hearing before a jury.He now appeals from the circuit court’s order denying his subsequent
August 2010 petition for discharge without a hearing. Schulpius argues that: (1) the circuit court applied the wrong
standard to determine whether his August 2010 petition entitled him to a
hearing pursuant to Wis. Stat. § 980.09(2); and
(2) even if we accept the State’s standard for determining when a hearing
is required under § 980.09(2), he made a sufficient showing in his August
2010 petition to require a hearing.

¶2More specifically, Schulpius argues that Wis. Stat. § 980.09(2) entitles a
petitioner to a hearing if, after considering evidence of the petitioner’s
progress since the date of his initial
commitment, the court determines that the evidence shows that a reasonable
trier of fact could determine that the petitioner currently fails to meet the
criteria for commitment as a sexually violent person.Schulpius argues that the circuit court erred
by construing the statute to require evidence of a change in the petitioner’s
status since the date of his last
discharge hearing.

¶3The State agrees that Wis.
Stat. § 980.09(2) requires the circuit court to consider all of the
evidence of the petitioner’s progress since the initial commitment hearing, but
argues that the petitioner is entitled to a discharge hearing only where there
is also new evidence, not previously considered by a trier of fact, from which
a reasonable trier of fact could conclude that the petitioner does not meet the
criteria for commitment as a sexually violent person.

¶4Based on our independent review of Wis. Stat. § 980.09(2), we agree with the State that,
while the circuit court must consider all of the evidence in the record when
determining whether a discharge hearing is warranted, the petitioner must also
produce some new evidence, not previously considered by a trier of fact, which demonstrates
that he does not meet the criteria for commitment under Wis. Stat. ch. 980.Because Schulpius has not set forth the requisite new evidence—to wit,
an expert opinion, based on new facts, new professional knowledge, or new research—demonstrating
that he does not meet the criteria for commitment as a sexually violent person,
we affirm the denial of his request for a discharge hearing.

¶5The circuit court found Schulpius to be a sexually violent
person under Wis. Stat. ch. 980 in
July 1996, based upon predicate offenses that occurred when he was a juvenile.[3]The circuit court originally determined that
supervised release was appropriate, but following controversy and difficulties
concerning Schulpius’s placement, the circuit court committed Schulpius to
institutional care in Sand Ridge Secure Treatment Center (“Sand Ridge”) in
November 2000.This appeal
concerns:(1) the evidence
presented to the jury at Schulpius’s January 2010 discharge hearing, which was
based on consolidated annual re-examination reports from 2006, 2007, 2008, and
2009; and (2) the evidence in the record supporting Schulpius’s August
2010 petition for discharge.

¶6On July 19, 2006, pursuant to Wis.
Stat. § 980.07, the Department of Health and Family Services (“the
Department”) filed its annual re-examination report, accompanied by a treatment
progress report.[4]Dr. William A. Schmitt recommended that the
circuit court not consider Schulpius for either supervised release or
discharge.The circuit court then
appointed an examiner to serve as Schulpius’s court-appointed expert pursuant
to Wis. Stat. § 980.03(4)
(2003-04).[5]That examiner, Dr. Luis Rosell, filed a
report with the court on March 28, 2007, in which he concluded that Schulpius
had made sufficient progress for the court to consider whether he still met the
definition of a sexually violent person under Wis.
Stat. ch. 980.

¶7At a June 2007 hearing, the circuit court found probable
cause for discharge based upon the experts’ reports.[6]As such, at a later court date, the circuit
court set the case for a discharge hearing.[7]Before the discharge hearing could be held,
the Department filed its annual reports for 2007, 2008, and 2009.The parties agreed that all four reports—from
2006, 2007, 2008, and 2009—would be considered at the discharge hearing.

¶8On July 12, 2007, the Department filed its annual
re-examination report (again, completed by Department-appointed examiner Dr.
Schmitt), accompanied by the treatment progress report.Again, Dr. Schmitt recommended that the
circuit court not consider Schulpius for either supervised release or
discharge.

¶9On July 10, 2008, the Department filed its annual
re-examination report (this time completed by Department-appointed examiner Dr.
Robert Barahal), accompanied by the treatment progress report.In his report, Dr. Barahal: (1) diagnosed Schulpius with pedophilia,
which “predisposes him to commit sexually violent actions as defined by Chapter
980”; (2) opined that Schulpius “is still more likely than not to commit
additional sexually violent acts” and has not yet progressed sufficiently in
treatment; and (3) recommended that the circuit court not consider either
discharge or supervised release for Schulpius.

¶10On November 20, 2008, the Department filed an addendum to Dr. Barahal’s
July 2008 report.In the addendum, Dr.
Barahal changed his opinion on whether Schulpius was still dangerous, stating
that changes in protocols for scoring the Static-99[8]
actuarial exam led him to re-evaluate his position.As such, he stated that it was “no longer [his]
opinion to a reasonable degree of professional certainty that ... Schulpius
remains more likely than not to commit sexually violent acts.”

¶11Following Dr. Barahal’s change in position, the State
successfully sought an adjournment. On August
5, 2009, the Department filed its annual re-examination report (again,
completed by Dr. Barahal) and report of treatment progress.In his latest report, Dr. Barahal stated that
Schulpius “is currently in a category that is not clearly beneath or above the
legal threshold of ‘more likely than not’ that he will commit another sexually
violent offense should he be discharged.Subsequently, [Dr. Barahal] [could not] confidently offer a specific
recommendation to the court as to whether … Schulpius should be discharged.”

¶12The discharge hearing on the 2006, 2007, 2008, and 2009 annual
re-examinations was held before a jury on January 4 through January 6,
2010.Three key witnesses testified on
behalf of the State:Dr. Anthony Jurek,
Dr. Barahal, and Dr. Richard McKee.Dr.
Rosell testified for the defense.

¶13As relevant to Schulpius’s appeal, Dr. Barahal testified that
he reviewed more than 1000 pages of records and interviewed Schulpius twice
before he rendered an opinion.When asked
his opinion on whether Schulpius’s risk level made it more likely than not that
he would engage in future acts of sexual violence, Dr. Barahal said he was “not
sure.”He added:

I think he has, his risk is in
a category, I believe the statutory criterion, as I understand it, is that the
offender, it isn’t whether he’s dangerous or not dangerous. It’s whether he’s more than 50 percent likely
to do it again. And I think he’s in a
category which probably approaches 50 percent, but may or may not be above
that.

Dr. Barahal also testified that
he scored Schulpius a six on the Static-99.

¶14Following the experts’ testimony, the jury found that Schulpius
was still a sexually violent person, and the circuit court denied his petition
for discharge.Schulpius’s appellate
counsel filed a no-merit report with this court, and we summarily affirmed the
circuit court’s order to deny the petition.State v. Schulpius, No. 2010AP2865-NM, unpublished slip op. (WI
App Apr. 11, 2012).

¶15On July 22, 2010, approximately six months after the January
2010 discharge hearing, the Department filed its annual re-examination report
(again, completed by Dr. Barahal) and treatment progress report.

¶16In his July 2010 report, Dr. Barahal concluded, “to a
reasonable degree of psychological certainty[,] that … Schulpius does not meet
criteria for supervised release under Chapter 980.07(4).”Dr. Barahal also found that:

Schulpius’[s] probability of committing another
sexually violent act approaches, but is not clearly above or beneath, 50%.Therefore, it [was Dr. Barahal’s] opinion to
a reasonable degree of psychological certainty that … Schulpius’[s] degree of
risk does not meet the legal criterion … required for continued civil
commitment under Chapter 980.

¶17The July 2010 treatment report, completed by staff at Sand
Ridge, described the sexually-violent-person treatment program at the
institution, explaining that it consisted of three phases, followed by a fourth
phase intended to be completed during supervised release.The report noted that Schulpius was in phase
one when the report was written and described phase one as providing an
“opportunity to improve his general self-management skills and to work to
ameliorate personality disorder symptoms or other general factors that may
interfere with his effective participation in treatment.”One of Schulpius’s goals was to work towards
moving into phase two.The report stated
that during phase two “the patient is expected to identify and learn to refute
the kind of thinking that in the past led to him offending.”

¶18The 2010 treatment report also stated that Sand Ridge
classifies patients according to their “level of cognitive functioning and
level of psychopathic personality traits.”The report noted that, since the 2009 treatment report, Schulpius had
returned to the conventional treatment track.He was placed in the conventional treatment track because it had “been
judged that his cognitive abilities [were] sufficient that no special
accommodations [were] required for him to participate meaningfully in treatment
and that he d[id] not show levels of psychopathic traits that materially interfere
with his treatment participation.”The
report concluded that Schulpius had not made significant progress in treatment
as he was only in phase one, and until he completed phase three he would not
have made significant treatment progress toward lowering his risk for
committing future sexually violent acts.

¶19In August 2010, on the heels of the Department’s July 2010
report, Schulpius filed a new petition for discharge on the grounds that he no
longer met the criteria for commitment as a sexual violent person.More specifically, he alleged that he “no
longer fit the definition of the law” because he was “no longer over 50% likely
to reoffend.”

¶20Initially, the State did not oppose holding a hearing on
Schulpius’s petition for discharge.However, in March 2011, the State filed a motion for reconsideration,
requesting that the circuit court deny Schulpius’s petition for discharge
without a hearing.The State contended
that the recently decided Wisconsin Supreme Court case State v. Arends, 2010 WI
46, 325 Wis. 2d 1, 784 N.W.2d 513, and two recently decided Wisconsin Court of
Appeals cases interpreting Arends, made clear that before a
petitioner is entitled to a discharge hearing, he must allege facts from which
the court or jury may conclude that the petitioner’s condition has changed
since the last discharge hearing such that the petitioner no longer qualifies
for commitment as a sexual violent person.[9]The State argued that Schulpius’s August 2010
petition and supporting documents did not allege any facts from which it could
be concluded that his condition had changed since the January 2010 discharge
hearing, and therefore, contended that he was not entitled to a hearing under Arends.

¶21The
circuit court agreed with the State’s position and granted its motion for
reconsideration, thereby denying Schulpius’s petition for discharge without a
hearing.Schulpius appeals that order.

DISCUSSION

¶22Under Wis. Stat.
§ 980.09, an individual committed as a sexually violent person may file a
petition for discharge at any time.However, before granting the petitioner a hearing, the circuit court
must go through a two-step process “aimed at weeding out meritless and
unsupported petitions, while still protecting a petitioner’s access to a
discharge hearing.”Arends, 325
Wis. 2d 1, ¶22.

¶23To begin, under Wis. Stat.
§ 980.09(1),[10]
the circuit court performs a paper review of the petition and its attachments
“to determine whether the facts alleged are those ‘from which the court or jury
may conclude the person’s condition has changed since the date of his … initial
commitment order so that the person does not meet the criteria for commitment
as a sexually violent person.’”Arends,
325 Wis. 2d 1, ¶26 (citing § 980.09(1)).If so, “the court then proceeds to a review under
§ 980.09(2).”Arends, 325 Wis. 2d 1,
¶30.

¶24Under Wis. Stat.
§ 980.09(2),[11]
the circuit court reviews “all the items enumerated in [the statute] that are
in the record at the time of review,” Arends, 325 Wis. 2d 1, ¶33,
including:“(1) any current and past
re-examination reports or treatment progress reports filed under Wis. Stat. § 980.07; (2) relevant
facts in the petition and in the State’s written response; (3) arguments of
counsel; and (4) any supporting documentation provided by the person or the
State,” Arends, 325 Wis. 2d 1, ¶32 (formatting altered).The court may “order the production of any of
the enumerated items not in the record, but is not required to do so.”Id., ¶33.The circuit court must order a discharge
hearing if it determines that “the enumerated items contain any facts from
which a reasonable trier of fact could conclude that the petitioner does not
meet the criteria for commitment as a sexually violent person.”Id., ¶43.

¶25Here, the parties do not dispute the circuit court’s finding
under Wis. Stat. § 980.09(1) that
Schulpius’s petition alleges facts from which a reasonable factfinder could
conclude that his condition has changed.Seeid.Rather, the issue on appeal is whether Schulpius met the showing
required for a discharge hearing under § 980.09(2).To answer that question, we consider:(1) what showing is required to entitle
a petitioner to a discharge hearing under § 980.09(2); and (2) whether
Schulpius met that showing here.

I.Wisconsin Stat. § 980.09(2)
requires a petitioner to bring forth new evidence, not considered by a prior
trier of fact, demonstrating that the petitioner currently does not meet the
criteria for commitment as a sexually violent person.

¶26Wisconsin
Stat. § 980.09(2) specifically enumerates what evidence a court should
consider when determining whether a petitioner is entitled to a discharge
hearing, but unlike § 980.09(1), § 980.09(2) does not specifically say
whether the court should consider the evidence “since the date of his … initial
commitment” or since some other undesignated time.However, the Wisconsin Supreme Court stated in
Arends
that § 980.09(2) requires a circuit court, when deciding whether to hold a
discharge hearing, to consider “whether the record
in toto, including all reports, the petition and any written response,
arguments of counsel, and any other documents submitted, contain facts that
could support relief for the petitioner at a discharge hearing.”Arends, 325 Wis. 2d 1, ¶38.By referencing “the record in toto,” the supreme court expressly stated that the
circuit court should consider all reports and documents that have been filed
since the petitioner’s initial commitment.See id.

¶27The parties agree that Wis.
Stat. § 980.09(2) and Arends require the circuit court to
consider all of the evidence in the record.The issue raised on appeal is whether the petitioner can rely solely on
evidence already considered and rejected by a previous trier of fact to meet
his burden for a new discharge hearing.Resolution of this debate requires us to interpret § 980.09.The interpretation of a statute raises a
question of law that we construe independently of the circuit court.SeeState
v. Pocan, 2003 WI App 233, ¶5, 267 Wis. 2d 953, 671 N.W.2d 860.

¶28The supreme court noted in Arends that while Wis. Stat. § 980.09(2) requires the
circuit court to consider all of the
reports filed since the petitioner’s initial commitment, the circuit court is
still free to weigh the reports as it sees fit, stating: “This is not to say that the court must take
every document a party submits at face value.The court’s determination that a court or jury could conclude in the
petitioner’s favor must be based on facts upon which a trier of fact could
reasonably rely.”Arends, 325 Wis. 2d 1,
¶39.Ultimately, the court said that the
standard “is similar to that used in a civil action to decide a motion to
dismiss at the close of evidence under Wis.
Stat. § 805.14(4).”Arends,
325 Wis. 2d 1, ¶42.“If any facts
support a finding in favor of the petitioner, the court must order a discharge
hearing on the petition; if no such facts exist, the court must deny the
petition.”Id.,¶43.

¶29However, the supreme court in Arends was not asked to
apply the “any facts” test to evidence on which a previous factfinder had
already concluded that the petitioner met the criteria for initial or continued
commitment.That issue was addressed by
this court in State v.Combs, 2006 WI App 137, 295 Wis. 2d
457, 720 N.W.2d 684,and State v.Kruse, 2006 WI App 179,
296 Wis. 2d 130, 722 N.W.2d 742.In both
Combs and Kruse, we addressed whether a new expert’s re-examination
opinion, favorable to the petitioner, is actually “new” when it is based solely
on evidence considered by other experts at a petitioner’s original commitment
hearing.Combs, 295 Wis. 2d 457,
¶1; Kruse,
296 Wis. 2d 130,¶2.

¶30In Combs, we determined that the petitioner’s expert’s opinion was
insufficient to entitle the petitioner to a discharge hearing because the
expert’s opinion was not based on:(1)
any changes in the petitioner’s behavior since the initial commitment hearing, id.,
295 Wis. 2d 457, ¶26; (2) any new method of evaluating whether the petitioner
“was a sexually violent person that was not available at the time of the
commitment [hearing],”id.;
or (3) new research or professional writings on how to interpret or score
the actuarial instruments, id., ¶27.Moreover, while the expert did consider the petitioner’s
progress in treatment, a new fact, the expert explicitly stated that the
petitioner’s treatment progress was not a basis for her conclusion that the
petitioner was not a sexually violent person.Id.,¶26.

¶31As such, we determined in Combs that the petitioner’s expert’s
opinion was “new” only in the sense that she was not one of the experts who
evaluated the petitioner at the time of his initial commitment hearing.Id., ¶27.We held that Wis.
Stat. § 980.09(2) required the petitioner to show “something more than facts, professional
knowledge, or research that was considered by an expert testifying in a prior
proceedingthat determined the
person to be sexually violent” before the circuit court was required to hold a
discharge hearing.Combs,
295 Wis. 2d 457, ¶32 (emphasis added).

¶32We held similarly in Kruse, relying on Combs,
that the petitioner was not entitled to a discharge hearing because his expert’s
opinion “d[id] not, as required by Combs, depend on any fact or
professional knowledge or research that was not considered by experts
testifying at the commitment [hearing].”Kruse, 296 Wis. 2d 130, ¶42.We noted that although the expert did “take into account events and
information that occurred since the commitment [hearing], … her opinion that
[the petitioner] is not a sexually violent person does not depend upon
them.She expressly states that it is ‘unlikely’
that treatment had ‘significantly reduced reoffending risks.’”Id., ¶41.Furthermore, while the expert noted that
since entering treatment the petitioner “showed some increased insight and
remorse, and his behavior with female staff had ‘seemingly improved …,’ [the
expert] d[id] not indicate that her opinion that [the petitioner] [wa]s not a
sexually violent person [wa]s based in any part on these apparent
improvements.”Id.

¶33Schulpius dismisses both Combs and Kruse, arguing that they
are no longer good law because they arose under the old “probable cause”
version of Wis. Stat.
§ 980.09(2) (2003-04).We disagree.

¶34In Arends, the supreme court explicitly stated that Kruse
and other pre-2006 Wis. Stat. ch.
980 cases are still applicable, stating:“Although these cases all applied the old ‘probable cause’ standard,
their results would be the same under the new standard.”Arends, 325 Wis. 2d 1, ¶39 n.21.So,
not only is Kruse still applicable, but Arends expressly states
that Kruse’s
holding—that a report favorable to a petitioner “based solely on evidence that
had already formed the basis for the denial of a previous discharge petition”
is insufficient to form the basis for a new discharge hearing—still stands.SeeArends,
325 Wis. 2d 1, ¶39 n.21.

¶35Given the plain language of Wis.
Stat. § 980.09(2) and the relevant case law, we hold that, when
determining whether to hold a hearing on a petition for discharge, the circuit
court must determine whether the petitioner has set forth new evidence, not
considered by a prior trier of fact, from which a reasonable trier of fact
could conclude that the petitioner does not meet the criteria for commitment as
a sexually violent person.An expert’s
opinion that is not based on some new fact, new professional knowledge, or new research
is not sufficient for a new discharge hearing under § 980.09(2).SeeCombs,
295 Wis. 2d 457, ¶32.This result is the
only reasonable one.Permitting a new
discharge hearing on evidence already determined insufficient by a prior trier
of fact violates essential principles of judicial administration and
efficiency.We are to avoid absurd or
unreasonable results in statutory construction.SeeState
v. Delaney, 2003 WI 9, ¶15, 259 Wis. 2d 77, 658 N.W.2d 416.

II.Schulpius is
not entitled to a Wis. Stat.
§ 980.09(2) discharge hearing because the expert’s new opinion was not
based on new facts, new professional knowledge, or new research.

¶36As we have seen, in order to be entitled to a discharge
hearing, the petition materials must show new evidence—new fact, new
professional knowledge, or new research—not considered by a prior trier of
fact, upon which a reasonable trier of fact could conclude that the petitioner
currently does not qualify for commitment under Wis.
Stat. ch. 980.As such, we
review whether Schulpius has raised new evidence in his August 2010 petition
for discharge, such that a reasonable trier of fact could conclude that his
condition had changed since the January 2010 discharge hearing.

¶37Schulpius based his August 2010 petition for discharge on the
fact that the State’s expert, Dr. Barahal, had changed his opinion since he
testified in January 2010.At the
January 2010 discharge hearing, Dr. Barahal testified that he was “not sure” if
Schulpius fit the criteria for a sexually violent person.In his July 2010 re-examination report, Dr.
Barahal affirmatively stated that he believed that Schulpius no longer met the
criteria for commitment.Schulpius
argues that Dr. Barahal based his new opinion on:(1) Schulpius’s new, lower score on the
Static-99R, from a six to a five; and (2) Schulpius’s treatment
progress, moving from the corrective-thinking treatment track to the conventional
track.

¶38The State argues that Dr. Barahal’s July 2010 opinion is
essentially the same as his testimony at the January 2010 hearing.There is no dispute that at the January 2010
hearing Dr. Barahal testified that he was “not sure” if Schulpius met the legal
test of “more likely than not he would engage in future acts of sexual
violence” and that Schulpius was “in a category which probably approaches 50
percent [to reoffend], but may or may not be above that.” In his July 2010 report, Dr. Barahal still
opined that Schulpius’s “probability of committing another sexually violent act
approaches, but is not clearly above or beneath 50%,” but in July 2010, Dr.
Barahal added that “Schulpius’[s] degree of risk does not meet the legal
criterion … required for continued civil commitment.”Despite Dr. Barahal’s changed opinion
from “not sure,” to “sure,” the State argues that his July 2010 report does not
support the request for a discharge hearing because there was no real change,
and even if there was, the changed opinion was not based on or linked to any
change in Schulpius himself, or any new professional knowledge or new
research.SeeCombs, 295 Wis. 2d 457, ¶32.

¶39We agree with Schulpius that Dr. Barahal’s July 2010
re-examination report expresses a new opinion, different from the one he
testified to at the January 2010 discharge hearing.But we agree with the State that our inquiry
does not end there.Whether a changed
expert opinion is enough for a discharge hearing depends on the basis for the change, that is, the new
“opinion must depend upon something more than facts, professional knowledge, or
research that was considered by an expert testifying in a prior
proceeding.”Id., ¶32.As we stated in Combs:

By way of example, an opinion that a person is not
sexually violent based at least in part on facts about the committed person
that did not occur until after the prior adjudication would meet this standard,
as would an opinion based at least in part on new professional knowledge about
how to predict dangerousness.

Id.

¶40Despite Schulpius’s arguments to the contrary, Dr. Barahal’s
July 2010 report is not based on any new fact about Schulpius, new professional
knowledge, or new research.Rather, Dr.
Barahal bases his new opinion on his recalculation of Schulpius’s Static-99
score, from a six to a five.

¶41In his July 2010 report, Dr. Barahal explained that he lowered
Schulpius’s score on the Static-99R, from a six in January to a five in July,
because upon further reflection, he felt that in his earlier report he had
erroneously “considered the victim of [Schulpius’s] 1991 index offense a
stranger …, which would add a scoring point,” when in fact Schulpius had “met
the child, the son of a female friend, about a month prior to the
assault.”Dr. Barahal’s further
reflection on his past scoring is not sufficient for a new discharge hearing
because it is not new professional knowledge or research about how to predict
dangerousness.Seeid.

¶42Furthermore, nowhere in his report does Dr. Barahal state that
the basis for his new opinion was Schulpius’s treatment progress.It is true that Dr. Barahal refers to
Schulpius’s treatment progress in the body of his report, noting that:“Schulpius was returned to the more
‘conventional’ treatment track just last December, and while he is seen as
progressing well, without further complications, he remains in
early-to-intermediate treatment phases, working on tasks common to both ‘Phase
I’ and introductory ‘Phase II.’”But Dr.
Barahal does not link his new opinion to Schulpius’s treatment progress.In fact, Dr. Barahal’s ultimate conclusion is
that Schulpius “does not meet criteria for supervised release,” which criteria
he defines as “significant progress in treatment.”If Schulpius’s treatment progress was not
sufficient for supervised release, it can hardly be the basis for Dr. Barahal’s
conclusion that Schulpius merits discharge.

¶43Thus, we conclude that Dr. Barahal’s July 2010 opinion—that
Schulpius no longer meets the criteria of a sexually violent person—is not
based on new fact, new professional knowledge, or new research, but rather a
recalculation of the Static-99.Accordingly, the report sets forth an insufficient basis for a new
discharge hearing.SeeCombs, 295 Wis. 2d 457, ¶32.We affirm.

By the Court.—Order affirmed.

[1] All
references to the Wisconsin Statutes are to the 2009-10 version unless
otherwise noted.

[2] Schulpius’s
Wis. Stat. ch. 980 case has a long
procedural history, including multiple appellate reviews, that need not be
detailed here.We include only those
details necessary to decide the issue currently before us on review.

[3]
The original commitment order was signed by the Honorable John Franke.

[4]Wisconsin Stat. § 980.07(6)
requires the Department to submit to the court an annual report comprised of
the re-examination report and the treatment progress report.The re-examination report is to be prepared
annually by an examiner appointed by the Department to examine an individual’s
mental condition “to determine whether the person has made sufficient progress
for the court to consider whether the person should be placed on supervised
release or discharged.”See § 980.07(1).The treatment progress report is to be
completed annually by an individual’s treatment provider and is to address a
number of factors enumerated by the statute.See § 980.07(4).

[5]Wisconsin Stat. § 980.03(4)
(2003-04) authorized the circuit court, at the time of an individual’s
re-examination, to appoint an examiner for the individual upon request.The Honorable William Brash entered the order
appointing counsel here.

[6] At
the time the State filed its July 2006 annual report, Wis. Stat. § 980.09(2)(a) (2003-04) provided that if an
individual did not “affirmatively waive” his right to file a petition for
discharge after receiving the State’s annual report, the court was required to
hold a probable cause hearing “to determine whether facts exist that warrant a
hearing on whether the person is still a sexually violent person.”Id.Schulpius refused to sign the waiver after receiving the State’s 2006
report, and therefore, the court was required to hold a probable cause
hearing.This requirement was changed in
2006, 2005 Wis. Act 434, § 123 (eff. Aug. 1, 2006), and the current
statute requires an individual to file a petition for discharge to initiate a
review for a discharge hearing, and does away with the old probable cause
standard.SeeWis. Stat.
§ 980.09
(2009-10).

Judge Brash presided over the June 2007 probable cause
hearing.

[7] Due
to judicial rotation, the Honorable Patricia D. McMahon was assigned to the
case and set the date for the discharge hearing.

[8] There
are references in the record to both the Static-99 and the Static-99R.The Static-99R is the updated version of the
Static-99.

A committed person may
petition the committing court for discharge at any time.The court shall deny the petition under this
section without a hearing unless the petition alleges facts from which the
court or jury may conclude the person’s condition has changed since the date of
his or her initial commitment order so that the person does not meet the
criteria for commitment as a sexually violent person.

We note
that while § 980.09 does not include the (1) designation, the first paragraph
of the statute is commonly referred to as (1).

The court shall review the petition within 30 days and may hold a
hearing to determine if it contains facts from which the court or jury may
conclude that the person does not meet the criteria for commitment as a
sexually violent person.In determining
under this subsection whether facts exist that might warrant such a conclusion,
the court shall consider any current or past reports filed under s. 980.07,
relevant facts in the petition and in the state’s written response, arguments
of counsel, and any supporting documentation provided by the person or the
state.If the court determines that the
petition does not contain facts from which a court or jury may conclude that
the person does not meet the criteria for commitment, the court shall deny the
petition.If the court determines that
facts exist from which a court or jury could conclude the person does not meet
criteria for commitment the court shall set the matter for hearing.